Unlawful Appointment Investigation Delegation

Unlawful Appointment Investigation Delegation

The California Department of Human Resources (CalHR) is actively working on a variety of streamlining efforts, one of which is the new unlawful appointment investigation delegated process. In cooperation with both internal and external stakeholders, CalHR has developed new procedures that allow departments to manage their own unlawful appointment investigations. These new procedures provide departments greater flexibility while improving efficiency and maintaining accountability.

Delegation is granted through an Unlawful Appointment Investigation Delegation Agreement between the department’s executive management and CalHR. This Unlawful Appointment Investigation Delegation Agreement defines the reporting requirements, responsibilities, obligations, and expectations of the department. As part of streamlining efforts, CalHR is assuming a more consultative role with departments, which replaces the position-by-position control that CalHR currently exercises over departments.

Departments that have signed a formal Unlawful Appointment Investigation Delegation Agreement with CalHR will have the authority to:

Investigate and determine cause and resolution of unlawful appointments

Notify employees of reasons why the appointment is potentially unlawful

Notify employees of the 15-day period to submit additional information

Notify employees of the department’s final investigation findings

Directly notify State Controller’s Office of the action needed to void the appointment on the employee’s work history

Delegated departments will not have authority to initiate backdating of appointments beyond 60 days or corrections of appointments beyond 60 days. These issues must still come to CalHR. The process for backdating and/or correcting appointments is distinct from the process for voiding unlawful appointments. Delegated departments must contact their assigned CalHR Personnel Management Division analyst if backdating or correction of appointment issues arise in the course of investigating an unlawful appointment.

Most Common Causes of Unlawful Appointments

Article VII of the State Constitution requires that permanent appointments in State civil service be based on merit as ascertained by competitive examination. Unlawful appointments may occur for a variety of reasons including administrative errors, oversight, misinformation, or, in rare cases, attempts to circumvent the State’s civil service system. Some of the most common reasons for unlawful appointments are:

Transfer of an individual based on inaccurate interpretation of the transfer requirements.

Appointment of an individual to an inappropriate salary range of a deep classification.

Appointment of an individual from a non-reachable rank of the certification list.

Appointment of an individual with no civil service appointment eligibility.

Appointment of an individual who does not meet the minimum qualifications of the classification.

Another common type of illegal appointment is a “short duration” appointment (60 days or less), which is intended to provide the employee with an advantage to which he would not otherwise be entitled. The duration of the appointment in itself does not render the appointment unlawful, but rather the intent behind the short duration of the appointment, which is to provide the employee with eligibility that he would not otherwise have. Example: A person who is not reachable on a certification list for Sacramento is appointed to a position in San Francisco, and on the same day is transferred to Sacramento in the same classification, thus circumventing the list.

Departments that have signed an Unlawful Appointment Investigation Delegation Agreement must investigate all potential unlawful appointments to determine whether the appointment was made and accepted in “good faith” as required by California Code of Regulations, Title 2, Section 8. See the Laws and Rules of Unlawful Appointments for more information.

If a delegated department encounters a potential unlawful appointment that appears not to be due to one of the most common reasons listed above, or appears to involve a backdate or correction of appointment beyond 60 days, the departments must contact their assigned CalHR Personnel Management Division analyst for direction.

In addition, departments can take steps to reduce the incidence of unlawful appointments by:

Identifying and correcting flaws in the department’s hiring process workflow that may be causing unlawful appointments.

Directing staff responsible for appointment transactions to take the time and steps necessary to verify appointment eligibility, including review of the applicable laws, regulations and manual sections before a job offer is made.

Auditing appointment transactions on a periodic basis to ensure compliance with eligibility requirements as set forth in the applicable laws and regulations.

Unlawful Appointments are addressed by following a basic investigatory due process, described in detail under the subject headings below.

Discovery of a Potential Unlawful Appointment and Notifying an Employee (Initial Letter)

As soon as a department discovers a potential unlawful appointment, the department human resources staff must write a formal letter addressed to the employee’s residence notifying the employee of the potential that the appointment was unlawfully made. This letter is known as an Initial Notification of Potential Unlawful Appointment. For guidance on the language of the letter, see the Unlawful Appointments Templates and Samples page. Department human resources staff must meet with the employee to discuss the potential outcomes of an unlawful appointment, and how that may impact the employee.

At this initial meeting, the department must provide the employee with a copy of The Unlawful Appointment Review Process pamphlet Unlawful Appointment Review Process (.pdf) | Unlawful Appointment Review Process (.pdf) - Text Only (RTF) and answer any questions the employee may have. The department must not send the employee home, and must not return them to their previous position or encourage them to relinquish their current position. The employee must continue to work in the position and continue to receive compensation until the investigation is complete and formal action is taken to correct the unlawful appointment. The department must take no action on the employee’s appointment at this initial stage other than to begin a full investigation of the facts and circumstances surrounding the potentially unlawful appointment.

Investigating Potential Unlawful Appointments

Department human resources personnel are responsible for performing a planned and systematic search into the facts and circumstances surrounding any potential unlawful appointment. This fact-gathering is followed by an analysis of those facts in light of the applicable laws and rules surrounding the appointment.

Currently, non-delegated departments must immediately notify CalHR in writing of any apparent unlawful appointment as soon as it is discovered. The non-delegated department’s notification to CalHR includes:

The specific facts surrounding the appointment in question;

A description of the circumstances that may have resulted in an unlawful appointment;

Copies of relevant appointment documents; and

Any information or documentation that may demonstrate that the department and employee acted in good faith when the appointment was offered and accepted.

Departments that have signed a formal Unlawful Appointment Delegation Agreement with CalHR have the authority to investigate and determine cause and resolution of their own potential unlawful appointments, without having to send a notification with supporting documents to CalHR for investigation and final determination.

The process for delegated unlawful appointment investigations begins with the same discovery and gathering of facts and documentation as the non-delegated process. The following are the most common types of documents or information needed to review a possible unlawful appointment. Any documents used for investigation must be maintained in the event of an appeal.

Full name of employee

Social Security number

Copy of the vacancy announcement

Copy of the Bachelor of Arts or Bachelor of Science degree (if applicable)

PIMS Employment History

Copy of the organization chart(s)

Copy of the hiring package

Date of job offer

Description of what was offered to the employee

Date of the appointment

Employee’s civil service appointment eligibility

The basis on which the hiring manager concluded the employee had eligibility and subsequently authorized the employee to start working

Departments must use the employee’s official employment history to verify appointments held, dates, tenure and timebase. Departments should look up and print relevant class specifications and salaries, as well as any alternate range criteria that may be applicable. Departments must review and print the certification list that was used. Departments may need to review the employee’s State application, resume and/or transcript to determine whether minimum qualifications have been met. Departments may need to double-check the transfer using the Transfer Eligibility Worksheet - CalHR 880 to verify whether the transfer adhered to the transfer rules.

Departments must never assume any facts without verifying them and obtaining the relevant documentation of those facts. Department human resources staff who perform the investigations must take thorough notes and keep them in the investigation file. In determining whether an unlawful appointment was made in “good faith,” department investigators must determine whether the appointment was the result of a reasonable and unintentional mistake or was the result of some intent to violate or circumvent civil service laws and rules.

The goal of the investigation is to thoroughly answer the following questions:

What are the specific facts regarding the appointment?

What civil service laws, rules and policies apply to the appointment?

Is the appointment in compliance with those laws, rules and policies?

Was the appointment made and accepted in “good faith”?

What is the appropriate remedial action in this case?

Once the questions above can be completely answered, the delegated department must make a preliminary determination on the appointment, as discussed in the following section.

Once the delegated department has thoroughly investigated the circumstances surrounding the unlawful appointment, the department must write a formal letter addressed to the employee’s residence with the department’s preliminary determination. The Preliminary Determination Regarding Potential Unlawful Appointment letter must document the reasons for the department’s determination that the appointment is unlawful.

The California Code of Regulations Section 266.2 gives the employee 15 days to respond to a preliminary determination finding the employee’s appointment was potentially unlawful. The preliminary determination letter informs the employee of this right to provide to the department additional information regarding the potential unlawful appointment within 15 calendar days. For guidance on the language of the letter, see the Unlawful Appointments Templates and Samples page.

In addition to mailing the preliminary letter to the employee’s residence, the department must discuss the preliminary letter findings and the likely consequence (e.g., voiding of the appointment and return to former classification) with the employee and answer any questions the employee may have regarding the pending action.

Departments must indicate in the preliminary determination letter whether there is any evidence of the unlawful appointment being accepted by the employee in other than “good faith,” which would be the only instance when the department may pursue reimbursement of compensation associated with the unlawful appointment. If the unlawful appointment was made and accepted in “good faith” the employee is entitled to retain the earned salary and benefits.

The California Code of Regulations Section 266 prohibits the voiding of an unlawful appointment that has been in effect for more than one year if the appointment was made and accepted in “good faith.” Departments discovering unlawful appointments that have been in effect more than one year must still proceed with an investigation to determine whether the appointment was made in “good faith.” Departments must, for documentation purposes, write a Good Faith Unlawful Appointment Beyond the 1-year statute letter to the employee indicating that the unlawful appointment was discovered and that it will stand as the one-year limit has passed. For guidance on the language of the letter, see the Unlawful Appointments Templates and Samples page.

Notifying Employee of Final Determination of an Unlawful Appointment Final Letter)

Once the delegated department has thoroughly investigated the circumstances surrounding the unlawful appointment, and considered any additional information provided by the employee during the 15-day period, the department must write a formal letter addressed to the employee’s residence with the department’s final determination.

The Final Determination Regarding Potential Unlawful Appointment letter must document the reasons for the department’s final determination that the appointment is unlawful. This letter informs the employee of why the appointment was unlawful, whether it was made and accepted in “good faith” or not, what action the department will be taking to resolve the unlawful appointment, when the action will become effective, and how the employee may appeal the matter to the State Personnel Board.

If the employee has former state service prior to the unlawful appointment, a voiding of the appointment results in the employee being returned to his former position. If the employee has no former state service, voiding of an unlawful appointment will separate the employee from state service. If the appointment was made and accepted in good faith, the department may consider mitigating measures to ease the negative effects of voiding the appointment on the employee. Such options may include, but are not limited to:

Placing the employee’s name back on the employment list if appropriate.

Conducting a deferred examination for classifications that the employee would have been a likely competitor if the unlawful appointment had not occurred.

In addition to the employee, the final determination letter must be sent to the State Controller’s Office Personnel/Payroll Services Division, which is responsible for keying the transaction that separates the employee from the unlawful appointment. Departments must keep all letters and documentation for audit purposes and in the event of an appeal to the State Personnel Board.

Defending Your Determination in Case of SPB Appeal

Once the delegated department has issued the final determination letter, the impacted employee may file an appeal of the final determination of unlawful appointment within 30 calendar days of receiving the final decision letter. The employee must appeal to the State Personnel Board Appeals Division in writing. Department human resources personnel who investigated the unlawful appointment and made the final determination must be prepared to appear at the appeal hearing to describe and defend the decision to take action.

The Monthly Unlawful Appointment Reporting Worksheet must include all positions where an unlawful appointment was suspected, even if the investigation determined the appointment to be lawful in the end. The report must list only completed unlawful appointment investigations, not open investigations. The unlawful appointment report, unlike the other two monthly reports to CalHR, is not meant to be cumulative, meaning departments must not list a completed unlawful appointment on the report for more than a single month (the month in which the final determination was made).

The report must list the name of the employee, the position number, the date the unlawful appointment was effective, the date it was discovered, the reason the appointment was unlawful, the resolution of the appointment, and the date the final determination and resolution was effective. Departments must submit a “negative response” report even when no unlawful appointment investigations have been concluded in the month.

Departments that perform human resources work for other departments must maintain a separate Monthly Unlawful Appointment Reporting Worksheet for each appointing authority.

While reporting will be done initially via spreadsheets and email, CalHR plans to launch an interactive website by July 2015 that will provide a more automated means of reporting and monitoring while increasing transparency in the allocations made statewide. More information will be provided to departments as CalHR progresses on the new automated website.

Monitoring and Auditing

CalHR will monitor each department’s unlawful appointment corrections via reports from the State Controller’s Office on a monthly basis. Departments will be notified immediately if discrepancies or disturbing trends are found. CalHR may request that departments provide select unlawful appointment investigation packages to CalHR for random review at any time during the delegation period. CalHR will also audit departmental position allocations as part of CalHR’s Human Resources Quality Review Program (HR Net access required).

Any questions about unlawful appointment investigation delegation should be addressed to the department’s assigned Personnel Management Division analyst at CalHR.